The answer: it depends who you ask about so-called “zombie deeds.”
In legal circles, a deed of land signed during the owner’s lifetime but registered after death is known as a zombie deed.
Judging by online comments in legal blogs, a significant number of real estate lawyers — myself included — would answer yes. This position is based on the 2015 ruling of Ontario Superior Court Justice Laurence Pattillo in the case of Winarski v. Sproul.
But the answer is no if you ask Jeff Lem, Ontario’s highly-respected director of titles, as well as Superior Court Justice Helen MacLeod-Beliveau in her March 2020 ruling in the Thompson v. Elliott estate case.
In the Winarski case, Ms. Sproul signed a deed to her Toronto property and gave it to her lawyer to register. Due to a minor title problem, the lawyer never registered it. Justice Pattillo ruled that the deed was valid to transfer ownership of the home out of Sproul’s estate.
In the Thompson case, Mrs. Elliott and her husband Mr. Thompson jointly owned a home in Ont. Ownership would go to the surviving spouse. Shortly before she died, Elliott signed a deed of land to split the joint ownership so that her half of the house would go to her adult children on her death, instead of her spouse.
When Elliott died three weeks later, her lawyer realized he had forgotten to register the deed, and proceeded to register it, despite the fact that she was deceased.
Justice MacLeod-Beliveau ruled that the post-mortem deed was invalid. She was highly critical of the lawyer who registered it.
The judge also referred to the administrative policy of Ontario’s director of titles, which is opposed to the registration of deeds after the death of the person who signed it. If the land registry office discovers that a deed has been registered after death — a big if, since it’s not always obvious — it will cancel the registration.
One issue that MacLeod-Beliveau seized on in the Thompson case was the statements of legal age and marital status, which are contained in every Ontario deed. At the time the deceased signed the deed, the statements were accurate. At the time of registration, they were not because the person was deceased.
The judge, along with Jeff Lem, the director of titles, take the position that those statements are wrong if the deed is registered after death. However, the judge in the Winarski case had no problem giving effect to an unregistered deed signed before death.
An online warning by the director of titles advises that lawyers cannot, under any circumstances, register a transfer of land signed by a deceased owner — even if we are “pretty sure that is what the client would have wanted.”
So now we have two decisions by judges of the Superior Court coming to opposite conclusions.
My personal view, despite considerable legal opinion to the contrary, is that zombie deeds are — excuse the expression — alive and well in the province of Ontario.
They are a valuable estate planning tool which allows Ontarians to avoid the punitive 1.5 per cent estate tax and the court delay of eight-plus months to obtain probate.
Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at email@example.com, phone 416-364-9366 or fax 416-364-3818.